2015 WL 7423038

United States Court of Appeals,
Tenth Circuit.
Sherrie SANDERS, Plaintiff–Appellant,
Bill ANOATUBBY, Governor; Chickasaw Nation Housing Administration; Wayne Scribner, Secretary of Community Service; Renee Sweet, Executive Officer of Housing Administration; Jackie Williams, Supervisor of Housing Administration; Terry Davis, Housing Administration, Defendants–Appellees.
No. 15–6116. | Nov. 23, 2015.

Attorneys and Law Firms
Sherri Sanders, Lawton, OK, pro se.
Michael Burrage, Oklahoma City, OK, pro se.
Bill Anoatubby, Governor, Oklahoma City, OK, pro se.
Chicksaw Nation Housing Administration, pro se.
Wayne Scribner, Secretary Of Community Service, pro se.
Renee Sweet, Executive Officer Of H.A., pro se.
Jackie Williams, Supervisor H.A., pro se.
Terry Davis, H.A., pro se.
Before GORSUCH, O'BRIEN, and BACHARACH, Circuit Judges.


TERRENCE L. O'BRIEN, United States Circuit Judge.
*1 Litigation is a disciplined process governed by rules and procedures. But Sherri Sanders recognizes no such bounds. Her filings amount to little more than a stream of consciousness recitation followed by an equally undisciplined request for relief. Her pro se status required the district court to afford her some leeway. But pro se litigants are required to follow procedural rules and no court may serve as their advocate. See Firstenberg v.. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir.2012); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005). Here the district judge stretched solicitude to its elastic limits, perhaps beyond. We also extend a solicitous eye, but one constrained by reason. In doing so, we affirm the dismissal of Sanders's complaint for want of subject matter jurisdiction and the denial of her motion to amend as futile.

I. Background1
Sanders is a citizen of the Chickasaw Nation (Nation), a federally recognized Indian tribe. From sometime in 2009 to September 23, 2014, she was employed as a Housing Specialist in the Nation's Division of Housing (Division). While so employed, her supervisors and other employees allegedly treated her unfairly, called her names, made derogatory comments about her personal life, and failed to follow tribal policies and procedures with respect to her employment.2 She also claims to have been wrongfully discharged because, contrary to tribal policy, she was not provided a statement of reasons for her termination.

During this same time frame, she filed applications for housing assistance with the Division. Her applications indicated that her daughter and grandchildren would be living with her in the home, but they were processed as if she was the lone applicant, thereby relegating her to the lowest priority.3 She was told the applications were not being processed as a family application because her daughter was already receiving rental assistance. But Sanders claims the real reason was retaliation for her having filed a grievance against the Executive Director and one of her supervisors.

Sanders complaint against the Division, Tribal Governor Bill Anoatubby4, and various tribal officers consisted of two conclusory paragraphs (quoted verbatim):

1.) Wrongful Termination, Abuse of Authority, Non–Compliance of Several Chickasaw Policies and Procedures, Hostile Work Environment, Did Not Allow Due Process, Denied Me My Individual Rights.
2.) Homeowner's Application Discrimination, Non–Compliance of NAHASDA (Native American Housing Assistance and Self–Determination Act of 1996), Improper Handling of Application Due to Retaliation From H.A. Superiors.
(R. at 5.) In the cover sheet accompanying her complaint, she listed Title VII as the basis of her complaint.
Defendants moved to dismiss under Fed.R.Civ.P. 12(b)(1) arguing, inter alia, the Division and the individual defendants were entitled to tribal sovereign immunity. In her response to the motion to dismiss, Sanders supplied, for the first time, factual allegations supporting her claims and a prayer for relief; solicitously regarded it might be considered an amended complaint.5 She also asserted Title VI and the Ex Parte Young6 doctrine as additional grounds for jurisdiction. She simultaneously moved to amend her complaint to add Title VI as a basis for jurisdiction over her housing application/NAHASDA claims and the Ex Parte Young doctrine as grounds for jurisdiction over the individual defendants. But her motion to amend did not even attempt to explain how Title VI and Ex Parte Young avoided the tribal sovereign immunity defense. While she supplied no separate amended complaint labeled as such, the district judge seems to have treated her response to the motion to dismiss as a proposed amended complaint; so do we.

*2 The district judge concluded Defendants were entitled to tribal sovereign immunity and neither Title VI nor the Ex Parte Young doctrine applied. She denied Sanders's request to amend the complaint because amendment would be futile.7

II. Discussion
A dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is reviewed de novo.8 See Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004). "We review the denial of a motion to amend for abuse of discretion." Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.2007). A judge "should freely give leave [to amend] when justice so requires," see Fed.R.Civ.P. 15(a)(2), but a motion to amend may be denied if amendment would be futile. Anderson, 499 F.3d at 1238. "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Id. (quotations omitted). When, as here, the denial of a motion to amend "is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility." Peterson v. Grisham, 594 F.3d 723, 731 (10th Cir.2010) (quotations omitted).

Because the Nation is considered a sovereign government, it is immune from suit absent congressional abrogation or a clear waiver by the Nation. N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1281 (10th Cir.2012); see also Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). The Nation's sovereign immunity extends to its subdivisions, Native Am. Distrib. v. Seneca–Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir.2008), as well as to its tribal officers "so long as they are acting within the scope of their official capacities." See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir.2011). In other words, "tribal immunity protects tribal officials against claims in their official capacity." Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997). But "[a]n Indian tribe's sovereign immunity does not extend to an official when the official is acting as an individual or outside the scope of those powers that have been delegated to him." Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006) (quotations omitted).

Sanders does not dispute that the Division and the tribal officer defendants are entitled to tribal sovereign immunity.9 And she asserts no explicit waiver of that immunity by the Nation. Instead, she argues Congress abrogated that immunity under Title VI (her housing application claims) and Title VII (her employment claims). She further argues the Ex Parte Young doctrine applies to her employment claims against the individual defendants, without clarifying their status (individual or official capacity).

"Congress did not abrogate tribal immunity with regard to Title VII. Quite the contrary; rather than expressing any intention to abrogate tribal immunity, Congress specifically exempted Indian tribes from the definition of 'employers' subject to Title VII's requirements. See 42 U.S.C. § 2000e(b)."10 Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1152 (10th Cir.2011). Similarly, Title VI is of no help for her housing application/NAHASDA claims. It prohibits intentional discrimination of individuals based on their race, color, or national origin in programs and activities receiving federal funds (like the Nation's housing assistance program). See 42 U.S.C. § 2000d. But Congress, through NAHASDA, specifically exempted Indian tribes and their housing divisions from Title VI's reach. See 25 U.S.C. § 4131(b)(6) ("Title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] ... shall not apply to actions by federally recognized tribes and the tribally designated housing entities of those tribes under this chapter.").

*3 The Ex Parte Young doctrine is also inapplicable. That doctrine carves out an exception to a state's Eleventh Amendment immunity, allowing a plaintiff to bring suit "against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief." Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir.2012). Ex Parte Young is also an exception to tribal sovereign immunity. Crowe & Dunlevy, 640 F.3d at 1154–55.

Sanders's claims against the individual defendants do not allege an ongoing violation of federal law. Instead, they allege past violations of tribal policy and procedures. Moreover, the relief Sanders requests—$1 million and other trivial relief (see supra n. 9)—are not available remedies under Ex Parte Young; the doctrine is available only when a party seeks injunctive or declaratory relief.

Because Defendants are entitled to tribal sovereign immunity, the district judge correctly dismissed the complaint for lack of jurisdiction. See E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302–03 (10th Cir.2001) ( "Tribal sovereign immunity is a matter of subject matter jurisdiction."). And, because Sanders's proposed amended complaint (her response to the motion to dismiss) did not cure that deficiency, the judge properly denied the motion to amend the complaint as futile.